A new deportation test for European nationals?

4.2.14 – Luqmani Thompson & Partners acted for FV, an Italian national, in Secretary of State for the Home Department v FV (Italy) [2012] EWCA Civ 1199, a case in the Court of Appeal in 2012 concerning the rights of long-term resident European nationals to resist deportation.

Currently, if a European national has spent more than 10 years living continuously in the UK the Secretary of State must show that there are ‘imperative grounds’ of public security for deporting that individual. The principal issue in FV was whether time in prison interrupted the ‘continuous’ period of residence and also addressed the meaning of ‘imperative grounds’. The finding of the Court of Appeal was that ‘the continuity of residence for the purpose of regulation 21(4)(a) (ten years residence) is not broken by a period of imprisonment’ [71].

However, in a recent decision of Court of Justice of the European Union in Secretary of State for the Home Department v M.G. (Directive 2004/38/EC) Case C-400/12 the CJEU found that the same provision ‘must be interpreted as meaning that a period of imprisonment is, in principle, capable both of interrupting the continuity of the period of residence for the purposes of that provision and of affecting the decision regarding the grant of the enhanced protection provided for thereunder, even where the person concerned resided in the host Member State for the 10 years prior to imprisonment.’

The CJEU did go on to say that the fact that a person has ‘resided in the host Member State for the 10 years prior to imprisonment may be taken into consideration as part of the overall assessment required in order to determine whether the integrating links previously forged with the host Member State have been broken.’

The test for long term resident European nationals who wish to resist deportation using the enhanced protection of the ‘imperative grounds’ test now appears to be

1. 10 years ‘continuous residence’ acquired before any spell in prison; AND

2. Evidence that the ‘integrating links’ during the period of incarceration have not been broken

Where does this leave FV?

The Secretary of State was granted permission to appeal to the Supreme Court against the decision of the Court of Appeal and this may now be listed in the near future. In the meantime, the decision in MG will no doubt cause confusion for the Tribunals which have to interpret these provisions with arguably less clear cut assistance from the higher courts.